State v. Taylor , 2014 Ohio 3820 ( 2014 )

[Cite as State v. Taylor, 2014-Ohio-3820.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100738
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES J. TAYLOR, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573594-A
BEFORE: Celebrezze, P.J., Blackmon, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Charles J. Taylor, Jr., appeals from his conviction for
failure to comply with a police order. After a careful review of the record and relevant
case law, we affirm appellant’s conviction.
I. Procedural and Factual History
{¶2} On May 13, 2013, appellant was indicted and charged with one count of
failure to comply in violation of R.C. 2921.331(B), a felony of the third degree. On
October 21, 2013, the matter proceeded to a jury trial. The following evidence was
presented at trial.
{¶3} Ohio State Highway Patrol Trooper Chad Schell testified that he was
monitoring traffic in his patrol vehicle with his partner, Trooper Larry Roberts, when he
observed a motorcycle with a male and female passenger approach from the rear. As the
motorcycle passed, Trooper Schell noticed that the registration tag on the motorcycle’s
license plate appeared to be expired.
{¶4} Officer Schell entered the motorcycle’s license plate information into his
Mobile Data Terminal System (“MDTS”) and discovered that the license plate had
expired in 2010. Based on this information, Officer Schell attempted to conduct a
traffic stop of the motorcycle. However, the driver failed to stop and led police on a
chase traveling in excess of 50 m.p.h. in a 25 m.p.h. zone. The chase continued until the
driver “dumped the motorcycle to the ground” and attempted to flee the scene on foot.
The motorcycle fell on the female passenger’s leg, leaving her trapped under the bike as
the driver fled.
{¶5} Officer Schell testified that he pursued the driver on foot. During the
pursuit, Officer Schell observed the driver take off his helmet and throw it to the ground.
Officer Schell testified that he was briefly able to see the driver’s face. Officer Schell
made an in-court identification of appellant as the driver of the motorcycle and the
individual he chased on March 29, 2013.
{¶6} When Officer Schell was unable to apprehend appellant on foot, he was
picked up by Officer Roberts, and they returned to the female passenger, later identified
as Mya Walker. Officer Schell learned that while he pursued appellant, Officer Roberts
briefly questioned Walker and developed further information regarding the identity of the
driver. According to Officer Roberts, Walker stated that the driver was her boyfriend
and his name was “Charles Taylor.” Walker further stated that the driver’s date of birth
was January 5, 1976. Using information provided by Walker, Officer Roberts accessed
appellant’s information through his Mobile Data Terminal and located a BMV image of
appellant. Officer Schell confirmed that the photo of appellant shown to him by Officer
Roberts was the individual he chased.
{¶7} During Officer Schell’s direct examination, the state introduced the dash
camera video and audio captured during the March 29, 2013 incident. The dash camera
showed Officer Roberts conducting a short interview with Walker, who stated that the
driver of the motorcycle was “her baby’s father Charles Taylor.”
{¶8} Mya Walker was called to testify as a witness for the state. However, in
contradiction of her statements to Officer Roberts at the scene, Walker testified that she
did not know an individual by the name of “Charles Taylor” and that she did not know the
identity of the man driving the motorcycle on March 29, 2013. Walker testified that she
got on the motorcycle with a random person to make a boyfriend named “Antwon”
jealous. Walker stated that she did not know what the driver of the motorcycle looked
like because he was wearing a helmet. Walker admitted that she told officers that
“Charles Taylor” was the driver of the motorcycle on the day of the incident. However,
Walker explained that she made up the name “Charles Taylor” and lied to police about
the identity of the driver because she was “scared.”
{¶9} On October 23, 2013, the jury found appellant guilty of the single count of
failure to comply. At sentencing, the trial court ordered appellant to serve 24 months in
prison.
{¶10} Appellant now brings this timely appeal, raising three assignments of error
for review:
I. The trial court erred in permitting the state to impeach its own witness
with a prior inconsistent statement and in admitting that as substantive
evidence in violation of the Ohio Rules of Evidence and in violation of
appellant’s Due Process Rights under the Fourteenth Amendment to the
United States Constitution.
II. The trial court erred in permitting the introduction of impermissible
hearsay which denied the appellant a fair trial in violation of the Ohio Rules
of Evidence and in violation of the Due Process Clause of the Fourteenth
Amendment and the Confrontation Clause of the Sixth Amendment to the
United States Constitution.
III. Appellant’s conviction is against the manifest weight of the evidence.
II. Law and Analysis
A. Impeachment Evidence
{¶11} In his first assignment of error, appellant argues that the trial court erred in
permitting the state to impeach its own witness, Mya Walker, with a prior inconsistent
statement and in admitting that testimony as substantive evidence.
{¶12} Generally, a trial court enjoys broad discretion in admitting or excluding
evidence, and a reviewing court will not reverse that decision absent a finding of abuse of
discretion. State v. Williams, 7 Ohio App.3d 160, 454 N.E.2d 1334 (3d Dist.1982),
paragraph one of the syllabus. The term “abuse of discretion” implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). “The term has been defined as ‘a view or action that no
conscientious judge, acting intelligently, could honestly have taken.’” State v. Hancock,
108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130, quoting State ex rel. Wilms
v. Blake, 144 Ohio St. 619, 624, 60 N.E.2d 308 (1945).
{¶13} Under Evid.R. 607(A), a party may not impeach its own witness with a prior
inconsistent statement without showing surprise and affirmative damage. Surprise is
shown when a witness’s trial testimony is materially inconsistent with the witness’s prior
statements, and counsel had no reason to believe that the witness would recant when
called to testify. State v. Holmes, 30 Ohio St.3d 20, 23, 506 N.E.2d 204 (1987). To
show affirmative damage under Evid.R. 607(A), the inconsistent testimony must
“contradict, deny, or harm that party’s trial position * * *.” State v. Stearns, 7 Ohio
App.3d 11, 15, 454 N.E.2d 139 (8th Dist.1982).
{¶14} In the case at hand, Walker was arrested on a bench warrant and brought to
the court to provide testimony. At trial, Walker provided testimony that was in direct
contradiction to the statements she made to officers at the scene of the March 29, 2013
incident. Significantly, Walker stated that she lied to the police when she stated that the
driver of the motorcycle was Charles Taylor. She testified that she does not know
Taylor, and he was not the individual driving the motorcycle.
{¶15} There is no dispute that Walker’s testimony at trial was materially
inconsistent with the statement she gave to police at the scene of the incident. However,
appellant argues that the element of surprise was not satisfied because the state had
reason to believe Walker would recant her testimony because she was forced to testify via
a bench warrant. In our view, this fact alone does not preclude a finding of surprise.
Although Walker was forced to testify, the state had no basis to believe she would
disclaim ever knowing appellant on the stand, particularity where her version of events
was consistent during all conversations with the state prior to her direct examination.
See In re A.C., 11th Dist. Ashtabula No. 2013-A-0024, 2014-Ohio-640. ¶ 53 (“Where
there is no evidence to show that the state was aware that the witness would testify in a
different manner than her prior statements, the element of surprise is established”).
{¶16} Moreover, Walker’s statement that appellant was not the driver of the
motorcycle was clearly in contradiction of the state’s trial position. Thus, we cannot
conclude that the court abused its discretion by finding surprise and affirmative damage
and allowing the state to impeach Walker under Evid.R. 607(A).
{¶17} Appellant’s first assignment of error is overruled.
B. Hearsay Testimony
{¶18} In his second assignment of error, appellant argues that the trial court erred
in permitting the introduction of impermissible hearsay evidence.
{¶19} Hearsay is defined in Evid.R. 801 as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Evid.R. 802 governs the admissibility of hearsay evidence and
indicates that hearsay is inadmissible in the absence of an exception.
{¶20} A trial court possesses broad discretion with respect to the admission of
evidence, including the discretion to determine whether evidence constitutes hearsay and
whether it is admissible hearsay. State v. Essa, 194 Ohio App.3d 208, 2011-Ohio-2513,
955 N.E.2d 429, ¶ 124 (8th Dist.), citing State v. Graves, 9th Dist. Lorain No.
08CA009397, 2009-Ohio-1133, ¶ 4 (overruled on other grounds).
{¶21} In the case at hand, appellant argues that the trial court erred in permitting
Officer Roberts to testify about what Walker stated to him at the scene of the incident.
Particularly, appellant challenges Officer Roberts’s testimony that Walker told him
appellant’s date of birth, that she was dating appellant, and that appellant was the driver
of the motorcycle and the individual who fled from the scene.
{¶22} In overruling appellant’s hearsay objection, the trial court relied on Evid.R.
803(1), which permits the admission of statements “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or immediately
thereafter unless circumstances indicate lack of trustworthiness.” Therefore, of central
concern to the admission of statements of present sense impression is the temporal
proximity of statements to the event at issue. This is so because “[t]he principle
underlying this hearsay exception is the assumption that statements or perceptions
describing the event and uttered [closely in time] to the event, bear a high degree of
trustworthiness.” Graves at ¶ 4, quoting Cox v. Oliver Mach. Co., 41 Ohio App.3d 28, 37,
534 N.E.2d 855 (12th Dist.1987).
{¶23} The key to the statement’s trustworthiness is the spontaneity of the statement
— it must be either contemporaneous with the event or be made immediately thereafter.
Essa, supra, at ¶ 126. A minimal lapse of time between the event and statement
indicates an insufficient period to reflect on the event perceived; the declarant’s reflection
would detract from the statement’s trustworthiness. State v. Ellington, 8th Dist.
Cuyahoga No. 84014, 2004-Ohio-5036, ¶ 10. “When the statement is the ‘product of
reflective thinking rather than spontaneous perception,’ Evid.R. 803(1) does not apply.”
Graves at ¶ 4, citing State v. Simmons, 9th Dist. Summit No. 21150, 2003-Ohio-721, ¶
35-36.
{¶24} In the instant case, the record supports the trial court’s position that
Walker’s identification of appellant as the driver of the motorcycle qualifies as a present
sense impression. The statement was made within minutes of the event and reflects
Walker’s perception of, and involvement in, the event without time for reflection. Based
on the circumstances presented, this court cannot find that the trial court abused its
discretion in admitting Walker’s statements as substantive evidence. Officer Roberts’s
testimony was admissible pursuant to the present-sense-impression exception to the
hearsay rules of evidence.
{¶25} Appellant’s second assignment of error is overruled.
C. Manifest Weight
{¶26} In his third assignment of error, appellant argues that his conviction is
against the manifest weight of the evidence.
{¶27} In reviewing a claim that a verdict is against the manifest weight of the
evidence, this court considers the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and, in considering conflicts in the
evidence, determines whether the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
doing so, we remain mindful that the weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. This gives the trier of fact the
authority to “believe or disbelieve any witness or accept part of what a witness says and
reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction. Thompkins, supra, at 387.
{¶28} Appellant was convicted of violating R.C. 2921.331(B), which provides that
“[n]o person shall operate a motor vehicle so as to willfully elude or flee police after
receiving a visible or audible signal from a police officer to bring the person’s motor
vehicle to a stop.”
{¶29} In challenging the weight of the evidence supporting his conviction,
appellant contends that the state failed to present credible evidence that he was the driver
of the motorcycle, particularly where the only eyewitness, Mya Walker, testified that she
did not know appellant and Officer Schell admitted that he only managed to see the
driver’s face for a brief moment.
{¶30} After examining the entire record, weighing all the evidence and all
reasonable inferences, we are not able to conclude that the jury clearly lost its way in
finding appellant guilty of failing to comply with a police order. The jury, as the trier of
fact, was in the best position to weigh the credibility of the witnesses. While appellant
argues that Walker and Officer Schell’s testimony contained material inconsistencies, the
jury was free to give substantial weight to Walker’s on-scene statements identifying
appellant as the driver and Officer Schell’s in-court identification of appellant as the
driver based on his brief observation of appellant’s face during his pursuit of the fleeing
driver. Accordingly, appellant’s conviction is not against the manifest weight of the
evidence.
{¶31} Appellant’s third assignment of error is overruled.
{¶32} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR